Rudenauer v. Zafiropoulos11/21/2005
oreign object in the body," demonstrates that it did not intend other exceptions, including one for continuous treatment. Moreover, as we explain today in Joslyn v. Chang, ante , (2005), the adoption of this statute of repose was the product of much legislative study and consideration of whether limiting the duration of potential medical malpractice liability would control the costs of malpractice insurance and thus protect the supply of medical care in the Commonwealth. See Harlfinger v. Martin, supra at 41-42, 43.
We will not undo the Legislature's studied determination. It would be especially inappropriate to read ยง 4 as "intending" a continuous treatment exception. Tolling under such rules would vitiate the statute of repose, and the plaintiff conceded as much at oral argument. The statute of repose either would not apply, or only would apply after delay, in the broad category of cases where an allegedly negligent act or omission was followed by further care or responsibility by the same doctor. Tolling the statute of repose in every such case would eliminate the systemwide certainty that the Legislature deemed necessary. Such a result is inimical to the Legislature's intent.
The cases from other jurisdictions cited by the plaintiff do not affect our view of what our Legislature intended. Most of these cases involve tolling statutes of limitations rather than statutes of repose. See Tullock v. Eck, 311 Ark. 564, 568 (1993); Lane v. Lane, 295 Ark. 671, 673 (1988); Borgia v. City of N.Y., 12 N.Y.2d 151, 154-156 (1962); Hotelling v. Walther, 169 Or. 559, 561-562 (1942); Peteler v. Robinson, 81 Utah 535, 541 (1932); Farley v. Goode, 219 Va. 969, 970-971 (1979). Those cases that do toll a statute of repose involve statutes with different language from ours, and either base their holdings on that differing language and other State law, see Ewing v. Beck, 520 A.2d 653, 655 n.2, 663 (Del. 1987); Cunningham v. Huffman, 154 Ill. 2d 398, 401, 404-405 (1993), or simply rest their decisions on equitable considerations that we cannot apply in the face of our statute's language, see Sherwood v. Danbury Hosp., 252 Conn. 193, 202-203 & n.9 (2000); Blanchette v. Barrett, 229 Conn. 256, 258 n.1, 277-278 (1994).
The statute of repose, then, bars the plaintiff from proceeding against the defendants based on acts or omissions that were performed or should have been performed prior to August 30, 1994. We recognize that the plaintiff alleges additional negligence after August 30, 1994, for which liability would not be extinguished by the statute of repose (suit was filed August 30, 2001). However, her claims allegedly arising during the post-August 30, 1994, period suffer from a "complete failure of proof concerning an essential element" of the plaintiff's case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). Although the prospective testimony of plaintiff's expert witnesses, viewed in the light most favorable to the plaintiff, could be read as evidence of failures by Zafiropoulos to meet the relevant standard of care in 1995, there is no evidence that the alleged negligence caused any harm. The only proffered testimony on causation is that " ad a biopsy been performed by September of 1994, it likely would have resulted in a curative resection." The plaintiff has not come forward with any evidence that a different course of testing in 1995 (between Rudenauer's February 21, 1995, visit and the diagnosis of cancer in December, 1995) would have affected the ultimate outcome. (Nor is there any evidence of negligence or causation pertaining to the period between September, 1994, and February 21, 1995.) Thus, the plaintiff has not presented sufficient evidence to reach a jury as to any alle
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